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					                                                                    South Dakota Open Meetings Law

1-25-1. Open Meetings.                                                      (1) Discussing the qualifications, competence,            Dakota Open Meetings Commission shall examine the
                                                                                                                                                                                                         Guide to
Except as otherwise provided by law, the official meetings of        performance, character or fitness of any public officer or       complaint and investigatory file submitted by the state’s
the state and the political subdivisions thereof, including all
related boards, commissions and other agencies, and the
                                                                     employee or prospective public officer or employee. The term
                                                                     “employee” does not include any independent contractor;
                                                                                                                                      attorney and shall also consider signed written submissions
                                                                                                                                      by the persons or entities that are directly involved. Based on
                                                                                                                                                                                                         South Dakota’s
official meetings of boards, commissions and agencies                       (2) Discussing the expulsion, suspension, discipline,     the investigatory file submitted by the state’s attorney and any
created by statute or which are nontaxpaying and derive a            assignment of or the educational program of a student;           written responses, the commission shall issue a written
                                                                                                                                                                                                         Open Meetings Law



       Open
source of revenue directly from public funds, shall be open to              (3) Consulting with legal counsel or reviewing            determination on whether the conduct violates this chapter,
the public, except as provided in this chapter. It does not          communications from legal counsel about proposed or pending      including a statement of the reasons therefor and findings of
constitute an official meeting if members of a political             litigation or contractual matters;                               fact on each issue and conclusions of law necessary for the
subdivision of this state are attending a meeting of the state              (4) Preparing for contract negotiations or negotiating    proposed decision. The final decision shall be made by a
                                                                                                                                                                                                         Conducting the Public’s Business in Public
or one of its political subdivisions, a board, a commission, an      with employees or employee representatives;                      majority of the commission members, with each member’s
association, an agency, or any other public entity for which                (5) Discussing marketing or pricing strategies by a       vote set forth in the written decision. The final decision shall
public notice is provided pursuant to § 1-25-1.1 for the             board or commission of a business owned by the state or any      be filed with the attorney general and shall be provided to the
purpose of providing information or observing, and the notice        of its political subdivisions, when public discussion may be     public entity and or public officer involved, the state’s
requirements in § 1-25-1.1 do not apply.                             harmful to the competitive position of the business.             attorney, and any person that has made a written request for
                                                                                                                                      such determinations. If the commission finds a violation of
Meetings, including executive or closed meetings may be              However, any official action concerning such matters shall be    this chapter, the commission shall issue a public reprimand to
conducted by teleconference. Members shall be deemed                 made at an open official meeting. An executive or closed         the offending official or governmental entity. However, no
present if they answer present to the roll call taken by             meeting shall be held only upon a majority vote of the           violation found by the commission may be subsequently
teleconference. Any vote at a meeting held by teleconference         members of such body present and voting, and discussion          prosecuted by the state’s attorney or the attorney general. All
shall be taken by roll call. Except for executive or closed          during the closed meeting is restricted to the purpose           findings and public censures of the commission shall be
meetings held by teleconference, there shall be provided one         specified in the closure motion. Nothing in § 1-25-1 or this     public records pursuant to § 1-27-1. Sections 1-25-6 to 1-25-




      Meetings
or more places at which the public may listen to and participate     section may be construed to prevent an executive or closed       9, inclusive, are not subject to the provisions of chapter 1-26.
in the proceeding.                                                   meeting if the federal or state Constitution or the federal or
                                                                     state statutes require or permit it.                             1-25-8. Open Meeting Commission Members.
Except for executive or closed meetings held by teleconference                                                                        The South Dakota Open Meeting Commission shall be
of related boards and commissions of the state, there shall be       A violation of this section is a Class 2 misdemeanor.            comprised of five state’s attorneys appointed by the attorney
provided two or more places at which the public may listen to                                                                         general. Each commissioner shall serve at the pleasure of the
and participate in the proceeding. Except for the Digital Dakota     9-34-19. Executive Session - Material Exemption.                 attorney general. A chair of the commission shall be chosen
Network, no teleconference may be used in conducting                 Any documentary material or data compiled or received by a       annually from the membership of the commission by a
hearings or taking final disposition pursuant to § 1-26-4.           municipal corporation, county, or an economic development        majority of its members.
Teleconference meetings are subject to the notice provisions of      corporation receiving municipal or county funds, for the
chapter 1-25.                                                        purpose of furnishing assistance to a business, to the extent    1-25-9. Open Meeting Commission Members Conflicts.
                                                                     that such material or data consists of trade secrets or          No member of the commission may participate as part of
A violation of this section is a Class 2 misdemeanor.                commercial or financial information regarding the operation of   the commission or vote on any action regarding a violation of
                                                                     such business, is not a public record. Any discussion or         this chapter if that member reported or was involved in the
1-25-1.1. Public Notice.                                             consideration of such trade secrets or commercial or financial   initial investigation, is an attorney for anyone who reported or
All public bodies shall provide public notice, with proposed         information by a municipal corporation or county may be          was involved in the initial investigation, or represents or
agenda, at least twenty-four hours prior to any meeting, by          done in executive session closed to the public.                  serves as a member of the governmental entity about whom
posting a copy of the notice, visible to the public, at the                                                                           the referral is made. The provisions of this section do not
principal office of the public body holding the meeting, and,        1-25-6. Duty of the State’s Attorney.                            preclude a commission member from otherwise serving on
for special or rescheduled meetings, delivering, in person, by       If a complaint alleging a violation of this chapter is made      the commission for other matters referred to the commission.
mail or by telephone, the information in the notice to members       pursuant to § 23A-2-1, the state’s attorney shall take one of                                                                                      Prepared by:
of the local news media who have requested notice. For               the following actions:                                                                                                                   SD Office of the Attorney General
special or rescheduled meetings, all public bodies shall also              (1) Prosecute the case pursuant to Title 23A;
comply with the public notice provisions of this section for               (2) Determine that there is no merit to prosecuting the
                                                                                                                                                           Questions                                               SD Municipal League
regular meetings to the extent that circumstances permit.            case. Upon doing so, the state’s attorney shall send a copy of
                                                                     the complaint and any investigation file to the attorney
                                                                                                                                                                                                                      Updated August 2009
                                                                                                                                      Members of the South Dakota Municipal League can
A violation of this section is a Class 2 misdemeanor.                general. The attorney general shall use the information for      call 800-658-3633 or visit www.sdmunicipalleague.org.
                                                                     statistical purposes and may publish abstracts of such
1-25-1.2. Teleconference defined.                                    information, including the name of the government body
For the purposes of this chapter, a teleconference is information    involved for purposes of public education; or                    Open Meetings Commission
exchanged by audio or video medium.                                        (3) Send the complaint and any investigation file to the
                                                                                                                                      If you have questions on the procedures or status of a
                                                                     South Dakota Open Meetings Commission for further action.
                                                                                                                                      pending case, you may contact the Attorney General’s
1-25-2. Executive Session or Closed Meetings.
Executive or closed meetings may be held for the sole                1-25-7. Open Meetings Commission.                                office at 605-773-3215 and you will be directed to the
purposes of:                                                         Upon receiving a referral from a state’s attorney, the South     assistant for the Open Meetings Commission.
Q: What is South Dakota’s Open Meetings Law?                 media is all media (broadcast and print) that regularly    All votes shall be taken by roll call during the          No official votes may be taken on any matters during an
                                                             carries news to the community.                             teleconference.                                           executive session. The governing body must adjourn
A: SDCL 1-25-1 requires that official meetings of                                                                                                                                 the executive session and return to open session
cities, counties, school boards and all related boards       Q:   May agenda items be considered if they are            Q:   What happens when a public body fails to             before any official action can be taken. Board members
and commissions be open to the public.                            added less than 24 hours before a meeting?                 comply by properly notifying local media or          could be held personally liable for the results of an
                                                                                                                             posting notice?                                      official vote taken illegally during an executive session.
The meetings of boards and commissions which are             A:   Agendas for public meetings must be posted at
created by law OR which are entitled to receive              least 24 hours in advance. The rationale is that the       A: No South Dakota court has ruled on this question.      For example, a contract approved only during an
revenue directly from public funds are also subject to                        public and media should have some         The Attorney General believes that any action taken       executive session could be found void and the board
the open meetings law.                                                        time to determine whether to come         during any meeting that has not been properly noticed     members could be required to repay any public funds
                                                                              to the meeting.                           could, if challenged, be declared null and void. It       spend under the contract.
It is a Class 2 misdemeanor to break this law. A Class                                                                  could even result in personal liability for members
2 misdemeanor is punishable by a penalty of 30 days                             Adding agenda items right before        of the governing body involved, depending on the          Q:    What happens if the media or public are
in jail, a $500 fine or both (SDCL 22-6-2). Alternatively,                      meetings (or during the meetings)       action taken.                                                   improperly excluded from an official meeting?
violation of this law could result in a public reprimand                        frustrates that purpose. In one court
by a state board.                                                               case, a personnel issue was not         Q:   When can a meeting be closed to the public           A: Excluding the media or public from a meeting that
                                                             posted as part of the agenda and the local circuit court        and media?                                           has not been properly closed subjects the officials to
While the open meetings law does not define “official        held that the personnel decision was void (McElhaney                                                                 (a) prosecution as a Class 2 misdemeanor or (b) a
meeting,” specific statutes relating to cities, counties     v. City of Edgemont, Fall River County Civ. 98-44).        A:   SDCL 1-25-2 allows a majority                        public determination that an open meeting should
and school districts define what constitutes an official                                                                of the governing body to vote to                          have been held and explaining the reasons therefore.
meeting. The Attorney General has taken the position         For special or rescheduled meetings, public bodies         close a meeting when discussion
that a meeting, that must be open to the public, occurs      are to comply to the extent that circumstances permit.     revolves around employee or                               The first level of enforcement is the local state’s attorney.
when the following conditions exist:                         In other words, posting less than 24 hours in advance      student performance, legal matters,                       If an allegation is made regarding an open meeting
                                                                                                                                                                  Meeting
                                                             may be permissible in emergencies.                         employee contract negotiations or         Closed
                                                                                                                                                                                  violation, the local state’s attorney may elect to prosecute
1. A legal quorum of the entity is present at the same                                                                  pricing strategies by publicly owned        for           the case, may determine the matter has no merit, or may
   place at the same time; and                               Q:   Are email discussions “meetings” for purposes         competitive businesses. Meetings         Executive        refer the issue to the Open Meetings Commission, a
                                                                  of this law?                                          may also be closed for certain            Session         special five member commission comprised of state’s
2. Public business, meaning any matter relating to the                                                                  economic development m atters                             attorneys (created in 2004). The Commission is to
   activities of the entity, is discussed.                   A: No South Dakota court has ruled on this question        (SDCL 9-34-19).                                           examine whether a violation has occurred and make
                                                             but in some states courts have held that simultaneous                                                                written public findings. If the Commission finds that a
Openness in government is always encouraged.                 email communications conducted                             Note that statute does not require that meetings be       violation has occurred, the public officer cannot also be
                                                             among a quorum of the governing                            closed in any of these circumstances.                     prosecuted for the same event.
Q:   How are the Public and Media notified when              members of a public body constitute
     public business is being discussed?                     a “meeting” of the public body when                        Federal legislation regarding student records and         Q:    How are issues referred to the Open Meetings
                                                             the members discuss the merits of                          medical records often requires school districts and             Commission?
A:     SDCL 1-25-1.1 requires that all public bodies         a pending issue.                                           cities or counties to conduct executive sessions or
prominently post a notice and copy of the proposed                                                                      conduct meetings so as to refrain from releasing data     A:    Persons alleging violations
agenda at the organization’s principal office at least 24    Email participation in scheduling                          regarding student records or medical records.             of the open meetings laws must
hours PRIOR to the meeting. In the case of special or        or a similar activity would not, under analysis,                                                                     file their complaints with law
rescheduled meetings, public bodies are asked to             constitute a public meeting. For additional reference      Any official action based on these discussions must be    enforcement officials in the county
comply with the regular meeting notice requirements as       see Wood v. Battle Ground School District 27 P.3d          made at an open meeting. Violating this section of the    where the offense occurred.
much as circumstances allow. The notice must be              1208; 1998 N.D. Op. Atty. Gen. 0-5.                        law is a Class 2 misdemeanor or may result in a public    After a signed notarized complaint
delivered in person, by mail or over the telephone to all                                                               reprimand by a state board.                               is filed and any necessary
local news media who have asked to be notified. While        Q:   Will teleconferences be considered public                                                                       investigation is conducted, the state’s attorney may do
the law is silent on the issue, it is recommended that            meetings?                                             Q:   Does this law require that the public body,          one of three things: (1) prosecute the case as a
local media renew requests for notification as a means                                                                       within their motion, reference their purpose         misdemeanor; (2) decide that the complaint has no
of reminding the entity of ongoing                           A: Yes. The open meetings law allows for meetings,              for going into Executive Session?                    merit and report it to the Attorney General for statistical
media interest. The media is                                 including executive or closed meetings, to be                                                                        purposes; or (3) forward the complaint to the Open
encouraged to file all requests in                           conducted by teleconference (audio or video                A: The public body must refer to the general purpose      Meetings Commission for a determination.
writing to the Finance Officer.                              information exchange) if a place is provided for public    in the motion calling for an executive session.
                                                             participation by speaker phone.                            Discussion in the executive session must be strictly      Q:    What are the procedures for the Open Meetings
Q: Who are local media?                                                                                                 limited to the announced subject. The Attorney                  Commission?
                                                             The media and public must be notified of the               General encourages public bodies to cite the specific
A: Because there is no definition                            teleconference meetings under the same notice              reason when calling for an executive session, for         A:    Procedures for the Open Meetings Commission
set out in state law, the attorney                           requirements as any other meeting.                         example to “discuss student discipline” or “pursuant to   are posted on the Office of Attorney General’s website
general is of the opinion that local                                                                                    SDCL 1-25-2(3).”                                          at http://www.state.sd.us/attorney/office/opengov.asp.